104.22
Demand for testimony or production of
documents.

(a)
Whenever a demand for testimony or for the production of
documents is made upon an employee, the employee shall immediately notify
the Office of the General Counsel at the telephone number or addresses in
§104.2 and make arrangements to send the subpoena
to the General Counsel promptly.

(b)
An employee may not give testimony, produce documents,
or answer inquiries from a person not employed by the Office regarding
testimony or documents subject to a demand or a potential demand under
the provisions of this subpart without the approval of the General
Counsel. The General Counsel may authorize the provision of certified
copies not otherwise available under Part 1 of this title subject to
payment of applicable fees under § 1.19.

(c)

(1)
Demand for testimony or documents.
A demand for the testimony of an employee under this
subpart shall be addressed to the General Counsel as indicated in §
104.2.

(2)
Subpoenas. A subpoena for employee testimony or
for a document shall be served in accordance with the Federal Rules
of Civil or Criminal Procedure or applicable state procedure, and a
copy of the subpoena shall be sent to the General Counsel as
indicated in § 104.2.

(3)
Affidavits. Except when the United States is a
party, every demand shall be accompanied by an affidavit or
declaration under 28 U.S.C. 1746 or 35 U.S.C.
25(b) setting forth the title of the legal
proceeding, the forum, the requesting party’s interest in the legal
proceeding, the reason for the demand, a showing that the desired
testimony or document is not reasonably available from any other
source, and, if testimony is requested, the intended use of the
testimony, a general summary of the desired testimony, and a
showing that no document could be provided and used in lieu of
testimony.

(d)
Failure of the attorney to cooperate in good faith to
enable the General Counsel to make an informed determination under this
subpart may serve as a basis for a determination not to comply with the
demand.

(e)
A determination under this subpart to comply or not to
comply with a demand is not a waiver or an assertion of any other ground
for noncompliance, including privilege, lack of relevance, or technical
deficiency.

(f)
Noncompliance. If the General Counsel makes a
determination not to comply, he or she will seek Department of Justice
representation for the employee and will attempt to have the subpoena
modified or quashed. If Department of Justice representation cannot be
arranged, the employee should appear at the time and place set forth in
the subpoena. In such a case, the employee should produce a copy of these
rules and state that the General Counsel has advised the employee not to
provide the requested testimony nor to produce the requested document. If
a legal tribunal rules that the demand in the subpoena must be complied
with, the employee shall respectfully decline to comply with the demand,
citing United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951).